Advocate - Conflict of Interest

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM
MISC. CIVIL APPLICATION NO. 98 OF 2020
IN THE MATTER OF COMPANIES ACT
BETWEEN
JITESH JAYANTILAL LADWA
AND
IN THE MATTER OF PETITION FOR UNFAIR PREJUDICE BY
JITESH CHANDULAL LADWA.............................. ..PETITIONER
VERSUS
BHAVESH CHANDULAL LADWA............................. 1st RESPONDENT
AATISH DHIRAJLAL LADWA................. ................ 2nd RESPONDENT
NILESH JAYANTILAL LADWA............................... 3rd RESPONDENT
CHANDULAL WALJI LADWA......... ........................ 4th RESPONDENT
DHIRAJLAL WAUI LADWA.................................. 5th RESPONDENT
MSASANI PENINSULA FLATS LIMITED................ 6th RESPONDENT
RULING
Date of Last Order: 21/10/2020
Date of Ruling: 14/12/2020
MLYAMBINA, J.
In this petition, the Petitioner claims for unfair prejudice of his
interest in the 1st Respondent. Upon service of the petition to the
Respondents, the later decided to engage Advocate Michael T.
Ngalo to defend their interests. In reply the Respondent filed a
cross petition. In response to the cross petition, the Petitioner
raised an objection to wit.
The Respondent's advocate Michael J. T Ngalo who drafted

and filed the pleadings for the Respondents has a conflict of
interest and therefore he cannot lawfully prepare, file and or
appear on record for the Respondents.
When the petition came for hearing, the objector decided to

withdraw the objection. The Court suo moto, however, re-raised
the same objection and directed the parties to argue the same by
way of written submissions, hence this ruling.
Before going into further analysis, I will put into consideration the
following important facts and legal position that I have discerned
from the records herein. One, Counsel Elly Msyangi, John Chuma
and Sister Bernard were previously associates at Ngalo and Co.
Advocates. Two, Ngalo and Co. Advocates were advocates of
Ladwa Family at different point of time. Three, Counsel Elly
Msyangi first, then John Chuma followed by Sisty Bernard left the
firm of Ngalo and Co. Advocates and formed theirs in the name of
Lawgical Attorneys. Four, Lawgical Attorneys are the one who
2
drew and filed this petition. While Ngalo and Co. Advocates are
the one who filed a reply and cross petition.
Without going around the bush, both Ngalo and Co. Advocates
and his associates who have formed a new law firm in the name
of Lawgical Attorneys lacks ethical muscles to represent the
Petitioners and the Respondents. I will expound why: First,
Counsel Elly Msyangi, Sisty Bernard being former
Lawyers/Advocates in Ngalo and Co. Advocates a firm which
represented Ladwa Family and its members cannot appear and
file a petition against member of Ladwa Family or their
Companies. In essence, as put by the cross-petition Advocates,
they cannot ride two horses at the same time otherwise will sprit
asunder.
Second, as submitted by the Respondent, in terms of regulation

51 (1) of The Advocates (Professional Conduct and Etiquette
Regulations, 2018 conflict of interest arises where a member
moves from one law firm to another firm irrespective of whether
the new law firm is aware or discovers later. Regulation 51
{supra) requires where a moving member possess relevant
information which are confidential or otherwise and if disclosed to
a new law firm may prejudice the former client not to act at all or
3
take a case for and on behalf of the client. The rule behind
regulation 51 is to avoid double standards.
Third, the definition as to who is a client covered under

regulation 50 of the Advocates Professional Conduct and Etiquette
Regulations is too wide. It covers anyone whom an advocate
owes a duty of confidentiality whether or not the advocate client
relationship exists. As such, both the Petitioner and the
Respondent are covered to Lawgical Attorneys and Ngalo and Co
Advocates.
Fourth, regulation 3 of The Advocates (Professional Conduct and

Etiquette) Regulations, 2018 defines conflict of interest to mean;
a situation that has the potential to undermine the impartiality of
an advocate, because of the possibility of a dash between the
advocate's self-interest and the public interests. Both logical
attorneys counsel and Mr. Ngalo Advocate having dealt with
Ladwa's issues are suitable to be witnesses and not one to stand
for and another appose.
The interests developed while acting for the said family bars the
two law firms from drawing pleadings and representing the same
client as they have confidential information. This Court in the case
of Magweiga Munanka Samo and 2 Others v. Aloyce
4
Kisenga Kimbori and Another Land Case No. 80 of 2017 High
Court of Tanzania Dar es Salaam Registry (unreported) held;
the plaint being drawn, filed and endorsed by an advocate

and firm who have confidential information against the
former client, has been improperly brought before the Court.
To that effect, the plaint is hereby struck out of the record.
In a similar matter of conflict of interest, the Court in the case of

General Trading Co. Ltd v. Skjevesland (2002) EWCA Civil
1567 which was cited with approval by this Court in Magweiga's
case, had these to observe;
the Court had the power, under its inherent powers to

prevent abuse of its procedure to restrain an advocate from
representing a party if it were satisfied that there was a real
risk that his continued participation would lead to a situation
where the order made at a trial would have to be set aside
on appeal. In exceptional circumstances, that power could
be exercised even if the advocate did not have confidential
information.
Fifth, the representation of the Petitioner and the Respondents

by both Lawgical Attorneys and Ngalo and Co. Advocates
respectively goes beyond Rule 45 of the Advocates (Professional
5
Conduct and Etiquette) Regulations of 2018 made under Section
69 (b) and (c) of the Advocates Act Cap 341 which provides that:
1. A conflict of interest is one that would be likely to affect

adversely the advocate's judgment or advice on behalf of, or
loyalty to a client or prospective client.
2. An advocate shall not act or continue to act in a matter
where there is or is likely to be at conflict unless the
advocate has the informed consent of each client or
prospective client for whom the advocate proposes to Act.
3. A conflict of interests includes the duties and loyalties of the
advocate to any other client, whether involved in the
4. Particular transaction or not including the obligation to
communicate information.
In this case, the counsel for the Respondent has invited this Court
to go through the letter dated 5th December, 2018 which was
addressed by Advocate Ngalo to Elly Msyangi. It read:
Bear in mind that your active involvement may put you in a

situation of becoming a potential witness rather than a
lawyer for Jitesh.
The Respondent, therefore, shifted the conflict of interest to Elly

Msyangi. On the other hand, Counsel Elly alleged that he left
6
Ngalo's Office sometime in December, 2018 to date. Thus, at no
particular time he has ever dealt and or involved with legal affairs
for the Respondents.
The Petitioner further alleged that Advocates John Chuma and

Sisty Bernard never worked for the Respondent or even involved
in their affairs.
I have considered the arguments of both parties. The Court is of

firm view that, as long as one of the advocates in Lawgical
Attorneys was or happened to work with Ngalo and Co.
Advocates, a law firm which worked for the Ladwa Family, they
whole firm developed conflict of interests as it applies to Ngalo
and Co Advocates law firm.
In the end, therefore, the Court is satisfied that the objection

follows within the legal parameters of objection. Hence, both the
petition and the cross petition are struck out for being drawn and
filed by Lawgical Attorneys and Ngalo and Co. Advocates who
have conflicts of interests, costs be shared.

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

MISC. CIVIL APPLICATION NO. 98 OF 2020

IN THE MATTER OF COMPANIES ACT

JITESH JAYANTILAL LADWA

IN THE MATTER OF PETITION FOR UNFAIR PREJUDICE BY

JITESH CHANDULAL LADWA.............................. ..PETITIONER

BHAVESH CHANDULAL LADWA............................. 1st RESPONDENT

AATISH DHIRAJLAL LADWA................. ................ 2nd RESPONDENT

NILESH JAYANTILAL LADWA............................... 3rd RESPONDENT

CHANDULAL WALJI LADWA......... ........................ 4th RESPONDENT

DHIRAJLAL WAUI LADWA.................................. 5th RESPONDENT

MSASANI PENINSULA FLATS LIMITED................ 6th RESPONDENT

The Respondent's advocate Michael J. T Ngalo who drafted

When the petition came for hearing, the objector decided to

Second, as submitted by the Respondent, in terms of regulation

Third, the definition as to who is a client covered under

Fourth, regulation 3 of The Advocates (Professional Conduct and

the plaint being drawn, filed and endorsed by an advocate

In a similar matter of conflict of interest, the Court in the case of

the Court had the power, under its inherent powers to

Fifth, the representation of the Petitioner and the Respondents

1. A conflict of interest is one that would be likely to affect

Bear in mind that your active involvement may put you in a

The Respondent, therefore, shifted the conflict of interest to Elly

The Petitioner further alleged that Advocates John Chuma and

I have considered the arguments of both parties. The Court is of

In the end, therefore, the Court is satisfied that the objection

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